As filed with the Securities and Exchange Commission on October 29, 2004.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 2
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Denny's Corporation
(Exact Name of Issuer as Specified in its Charter)
Delaware 13-3487402
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
203 East Main Street
Spartanburg, South Carolina 29319-0001
(864) 597-8000
(Address, including zip code, and telephone number of Principal Executive
Offices)
Denny's Corporation 2004 Omnibus Incentive Plan
(Full Title of the Plan)
RHONDA J. PARISH, ESQ.
Executive Vice President, General Counsel and Secretary
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319-0001
(864) 597-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
Common Stock, par value $.01 10,000,000 (1) $2.88 (2) $28,800,000 (2) $3,648.96
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
(1) Amount to be registered consists of an aggregate of 10,000,000 shares to be
issued pursuant to the grant or exercise of awards to employees, officers,
directors and consultants under the Denny's Corporation 2004 Omnibus
Incentive Plan, including additional shares that may become issuable in
accordance with the adjustment and anti-dilution provisions of the Plan.
(2) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the average of the high and low prices of the Company's Common
Stock reported on the OTC Bulletin Board on October 26, 2004.
PART I
INFORMATION REQUIRED IN The Section 10(a) Prospectus
(a) The documents constituting Part I of this Registration
Statement will be sent or given to participants in the Denny's Corporation 2004
Omnibus Incentive Plan (the "Plan") as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended.
(b) Upon written or oral request, Denny's Corporation (the
"Company") will provide, without charge, the documents incorporated by reference
in Item 3 of Part II of this Registration Statement. The documents are
incorporated by reference in the Section 10(a) prospectus. The Company will also
provide, without charge, upon written or oral request, other documents required
to be delivered to employees pursuant to Rule 428(b). Requests for the above
mentioned information should be directed to Rhonda J. Parish, Executive Vice
President, General Counsel and Secretary, at (864) 597-8000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated herein by reference
and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2003;
(3) The section entitled "Description of Registrant's Securities To Be
Registered" in the Company's Registration Statement on Form 8-A filed with the
Commission pursuant to the Exchange Act, including all amendments or reports
filed for the purpose of updating such description;
(4) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities. Not Applicable.
Item 5. Interests of Named Experts and Counsel. Not Applicable.
Item 6. Indemnification of Directors and Officers
Denny's Corporation is a Delaware corporation. Reference is made to
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Reference is also made to Section 145 of the DGCL, which provides that
a corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation or is or was serving at the
request of such corporation as an officer, director, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify officers, directors, employees and agents in
an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer, director, employee or agent is adjudged to be liable to the
corporation. Where an officer, director, employee or agent is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer, director,
employee or agent actually and reasonably incurs.
The Company's Restated Certificate of Incorporation and By-Laws provide
for exculpation and indemnification of its officers and directors to the full
extent permitted under Delaware law. Specifically, Articles Sixth and Seventh of
the Restated Certificate of Incorporation provide for indemnification of
officers and directors to the full extent permitted by Section 145 of the DGCL
and the elimination of liability of directors to the full extent permitted by
Section 102 of the DGCL, and Article 5, Section 14 of the By-Laws provides for
indemnification of officers and directors to the full extent permitted by
Section 145 of the DGCL. Consequently, the registrant maintains officers' and
directors' liability insurance for the benefit of its officers and directors.
The Employment Agreement dated January 2, 2001 between Denny's Corporation and
Nelson J. Marchioli also provides for the indemnification of Mr. Marchioli by
Denny's Corporation to the full extent permitted by Delaware law and, in
connection therewith, calls for the advancement of attorneys' fees and expenses
(subject to repayment in certain circumstances). The Registration Rights
Agreement, dated as of January 7, 1998, among the Company and each of the
holders of registrable securities named therein, provides for indemnification by
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the Company of the holder of registrable securities that is a party thereto for
control person liability, if any, in respect of certain claims under the
Securities Act of 1933.
Item 7. Exemption from Registration Claimed. Not Applicable.
Item 8. Exhibits
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to Form 10-K
filed by the Company on March 25, 2003)
4.2 Certificate of Amendment to Restated Certificate of
Incorporation to Increase Authorized Capitalization
dated August 25, 2004 (incorporated by reference to
Exhibit 3.1 to the 8-K filed by the Company on August
27, 2004)
4.3 By-Laws of the Company, as amended through August 25,
2004 (incorporated by reference to Exhibit 3.2 to the
8-K filed by the Company on August 27, 2004)
5 Opinion of J. Scott Melton, Esq., regarding the legality
of the securities being registered
23.1 Consent of J. Scott Melton, Esq. (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature page)
99.1 Denny's Corporation 2004 Omnibus Incentive Plan (the
"Plan") (incorporated by reference to Appendix B to the
Definitive Proxy Statement filed by the Company on
August 2, 2004 and furnished to stockholders of the
Company in connection with the August 25, 2004 Special
Meeting of Stockholders of the Company.)
99.2 Form of stock option agreement to be used under the Plan
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
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securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities being offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(signatures on following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Denny's Corporation, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Spartanburg, State of South Carolina, on October
29, 2004.
DENNY'S CORPORATION
By: /s/ Andrew F. Green
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Andrew F. Green
Senior Vice President
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Rhonda J. Parish as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
/s/ Nelson J. Marchioli
------------------------- President, Chief Executive Officer October 16, 2004
Nelson J. Marchioli and Director (Principal Executive
Officer)
/s/ Andrew F. Green
------------------------- Senior Vice President and Chief October 18, 2004
Andrew F. Green Financial Officer (Principal
Financial and Accounting Officer)
/s/ Robert E. Marks
------------------------- Chairman of the Board of Directors October 18, 2004
Robert E. Marks
/s/ Vera K. Farris
------------------------- Director October 18, 2004
Vera K. Farris
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-------------------------- Director October __, 2004
Vada Hill
/s/ Elizabeth A. Sanders
-------------------------- Director October 18, 2004
Elizabeth A. Sanders
/s/ Donald R. Shepherd
-------------------------- Director October 18, 2004
Donald R. Shepherd
/s/ Debra Smithart-Oglesby
-------------------------- Director October 18, 2004
Debra Smithart-Oglesby
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EXHIBIT INDEX
TO
FORM S-8
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to Form 10-K
filed by the Company on March 25, 2003)
4.2 Certificate of Amendment to Restated Certificate of
Incorporation to Increase Authorized Capitalization
dated August 25, 2004 (incorporated by reference to
Exhibit 3.1 to the 8-K filed by the Company on August
27, 2004)
4.3 By-Laws of the Company, as amended through August 25,
2004 (incorporated by reference to Exhibit 3.2 to the
8-K filed by the Company on August 27, 2004)
5 Opinion of J. Scott Melton, Esq., regarding the legality
of the securities being registeredP
23.1 Consent of J. Scott Melton, Esq. (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature page)
99.1 Denny's Corporation 2004 Omnibus Incentive Plan (the
"Plan") (incorporated by reference to Appendix B to the
Definitive Proxy Statement filed by the Company on
August 2, 2004 and furnished to stockholders of the
Company in connection with the August 25, 2004 Special
Meeting of Stockholders of the Company.)
99.2 Form of stock option agreement to be used under the Plan
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